Question: My kids’ father has never been a part of their lives.  In my Will, can I name a guardian for my kids, other than their father?

Answer: Nominating a guardian to raise your minor children is a difficult decision for any parent.  The prospect of a deadbeat Dad, gaining custody, will keep you up at nights.  Can you nominate a guardian to step ahead of your children’s father?…not necessarily.

Courts approach this type of scenario favoring a Parent’s right to custody, over a nominated Guardian’s right to Guardianship.  This inclination does not apply in all situations.

If circumstances support Guardianship as a more favorable alternative to parental custody, your ex may be left out.  Such factors include: history of the Father’s abuse or substance abuse, and criminal record.  Less substantial factors include continuity of the child’s upbringing, and the child’s own input.

A Judge will look to maintain a child’s status quo, as much as possible.  In this hypothetical scenario, your kids will lose you as their primary parent.  This change is devastating.  A thoughtful Judge would support keeping them in their home and school, for consistency.  When they reach a certain age, their own opinions will be solicited and considered.

I recommend describing the reasons for your concern in your Will, and naming the Guardian you desire.  Though not a guarantee, a Will containing this language is a must for single parents like you.

Attorney James Haroutunian practices estate planning and real estate law.  His blog can be found at prioritylaw.com and www.hlawoffice.com.  Contact him at 790 Boston Road, Billerica, 978-671-0711 or email him at james@hlawoffice.com.

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